Citation Nr: 0904146
Decision Date: 02/05/09 Archive Date: 02/13/09
DOCKET NO. 07-33 247 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Togus,
Maine
THE ISSUE
1. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
residuals of a head injury.
2. Entitlement to service connection for residuals of a head
injury.
REPRESENTATION
Appellant represented by: Maine Veterans' Services
WITNESSES AT HEARING ON APPEAL
Appellant and Appellant's Wife
ATTORNEY FOR THE BOARD
Patricia Veresink, Associate Counsel
INTRODUCTION
The Veteran had active duty service from March 1962 to
September 1962.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 2006 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA). A notice of disagreement was received in January 2007,
a statement of the case was issued in August 2007, and a
substantive appeal was received in October 2007. The Veteran
testified at a personal hearing at the RO in November 2007.
FINDINGS OF FACT
1. A May 2001 RO rating decision denied service connection
for residuals of a head injury; the Veteran did not file a
timely notice of disagreement and the decision is now final.
2. Evidence that raises a reasonable possibility of
substantiating the claim of entitlement to service connection
for residuals of a head injury has been received since the
May 2001 rating decision.
3. Residuals of a head injury were not manifested during the
Veteran's active duty service or for many years after
service, nor are they otherwise related to service.
CONCLUSIONS OF LAW
1. New and material evidence has been received since the May
2001 denial of service connection for residuals of a head
injury, and the claim of service connection for residuals of
a head injury is reopened. 38 U.S.C.A. § 5107, 5108 (West
2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.303 (2008).
3. Residuals of a head injury were not incurred in or
aggravated by active duty service, nor may they be presumed
to have been so incurred. 38 U.S.C.A. §§ 1131, 5103A, 5107
(West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.159
(2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000
Under the Veterans Claims Assistance Act of 2000 (VCAA),
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and
3.326(a), VA has a duty to notify the claimant of any
information and evidence needed to substantiate and complete
a claim, and of what part of that evidence is to be provided
by the claimant and what part VA will attempt to obtain for
the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1);
Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002).
In a letter dated August 2006 the appellant was informed of
the information and evidence necessary to warrant entitlement
to the benefit sought on appeal. The appellant was also
advised of the types of evidence VA would assist him in
obtaining as well as his own responsibilities with regard to
identifying relevant evidence. See Quartuccio v. Principi,
16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370
(2002).
The United States Court of Appeals for Veterans Claims'
decision in Pelegrini v. Principi, 18 Vet.App. 112 (2004)
held, in part, that a VCAA notice as required by 38 U.S.C. §
5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction decision on a
claim for VA benefits. The VCAA letter to the appellant was
provided in August 2006 prior to the initial unfavorable
decision in October 2006.
Further, the notice requirements apply to all five elements
of a service connection claim: 1) Veteran status, 2)
existence of a disability, 3) a connection between the
Veteran's service and the disability, 4) degree of
disability, and 5) effective date of the disability. Dingess
v. Nicholson, 19 Vet.App. 473 (2006). Although the present
appeal involves the issue of an initial service connection
determination, VA believes that the Dingess/Hartman analysis
must be analogously applied. In the present appeal, the
appellant was provided with notice of what type of
information and evidence was needed to substantiate the
claim. Further, the August 2006 letter gave notice of the
types of evidence necessary to establish a disability rating
and effective date for the disabilities on appeal.
In Kent v. Nicholson, 20 Vet.App. 1 (2006), the Court found
that VA must notify a claimant of the evidence and
information needed to reopen the claim, as well as the
evidence and information needed to establish entitlement to
service connection for the underlying condition(s) claimed
(that is, that the obligations under Kent do not modify the
requirement that VA must provide a claimant notice of what is
required to substantiate each element of a service connection
claim, see Dingess, supra). In addition, VA must consider
the bases for the prior denial and respond with a notice
letter that describes what evidence would be needed to
substantiate the element or elements that were found to be
insufficient to establish service connection in the previous
denial.
The August 2006 VCAA letter explained to the Veteran the
reasons for the prior denial and what evidence was needed to
reopen the claim. Thus, the Veteran has been provided with
the type of notice contemplated by the Court in Kent and no
additional notice is necessary.
Where there is no showing of a disability in service or a
link between the Veteran's current disability and his active
service, a VA medical examination is not necessary. 38
U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also
McLendon v. Nicholson, 20 Vet.App. 79 (2006).
VA's duties of notice and assistance have been fulfilled with
respect to the issues on appeal.
Analysis
New and Material Evidence
A claim which is the subject of a prior final decision may
nevertheless be reopened if new and material evidence is
presented or secured. 38 U.S.C.A. § 5108. New and material
evidence is defined by regulation. See 38 C.F.R. § 3.156.
New evidence means existing evidence not previously submitted
to agency decisionmakers. Material evidence means existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim.
38 C.F.R. § 3.156(a).
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
The Veteran's claim to reopen his prior claim involves an
underlying claim of service connection for residuals of a
head injury. Service connection will be granted if it is
shown that the Veteran suffers from a disability resulting
from an injury suffered or disease contracted in line of
duty, or for aggravation of a preexisting injury suffered or
disease contracted in line of duty, in the active military,
naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. §
3.303. That an injury occurred in service alone is not
enough; there must be chronic disability resulting from that
injury. If there is no showing of a resulting chronic
condition during service, then a showing of continuity of
symptomatology after service is required to support a finding
of chronicity. 38 C.F.R. § 3.303(b). Service connection may
also be granted for any disease diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
A claim for service connection for residuals of a head injury
was last denied by the RO in May 2001. The Veteran was
informed of the decision in a May 2001 notification letter.
The Veteran did not file a notice of disagreement within one
year from the date of the notification of the rating decision
to appeal the denial of the claim. See 38 U.S.C.A. §
7105(b)(1). Thus, the decision became final.
A request to reopen the Veteran's claim was received in May
2006. The RO denied the request to reopen, and the present
appeal ensued.
The RO denied the Veteran's claim for service connection for
residuals of a head injury because the medical evidence of
record showed that the only head injury occurred at the age
of four. Service medical records show no treatment for a
head injury. The Veteran failed to submit any medical
evidence regarding a head injury related to military service.
The Veteran submitted medical documentation of treatment
years after service, however material evidence to reopen must
address an in-service injury or disease that caused the
current disability. In this regard, the Veteran submitted a
brief witness statement from fellow Veteran, P.S. The
statement was typed at the bottom of the letter from the
Veteran and simply said "I'm surprised the officer did not
report the incident. We all thought you were dead." It was
signed by P.S.
This statement, when not considered for its weight, satisfies
the requirements for new and material evidence. The
statement was not previously submitted to agency
decisionmakers. It relates to the unestablished nexus
between the Veteran's service and his disability, which is
necessary to substantiate the claim. The statement is
neither cumulative nor redundant and raises a reasonable
possibility of substantiating the claim. Accordingly,
reopening the claim is warranted. 38 C.F.R. § 3.156(a)
Although the RO denied the claim on the basis that the
evidence submitted was not new and material, in actuality the
October 2006 decision analyzed the case on the merits by
discussing the weight of the evidence. In effect, the RO
reopened the case and made a decision. As the RO addressed
the case on the merits, the Board may proceed to an analysis
of the claim on the merits without prejudice to the Veteran.
Service Connection
Service connection will be granted if it is shown that the
Veteran suffers from disability resulting from an injury
suffered or disease contracted in line of duty, or for
aggravation of a preexisting injury suffered or disease
contracted in line of duty, in the active military, naval, or
air service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303. That
an injury occurred in service alone is not enough; there must
be chronic disability resulting from that injury. If there
is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity.
38 C.F.R. § 3.303(b). Service connection may also be granted
for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R.
§ 3.303(d).
In order to establish service connection for a claimed
disability, there must be: (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. Hickson v. West, 12 Vet. App. 247, 253 (1999).
The determination as to whether these requirements are met is
based on an analysis of all the evidence of record and the
evaluation of its credibility and probative value. Baldwin
v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When
there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
The RO previously denied the Veteran's claim in May 2001
because the record lacked evidence of in-service incurrence
or aggravation of a pre-existing disease or injury. Other
than mentioning that the Veteran had surgery at the age of
four as the result of a car accident, the service treatment
records are silent regarding a head injury. At the time of
the prior final decision there was no evidence of in-service
incurrence or aggravation of a disease or injury. The
statement from P.S. was submitted to rectify that deficiency.
While, for the purpose of determining whether reopening the
claim is warranted, the credibility of the evidence must be
presumed, for the purpose of determining whether service
connection is warranted, the credibility and weight to be
given the evidence must be carefully considered.
The statement from P.S. contains no details of the incident.
It fails to discuss whether P.S. was present at the incident
and viewed it first hand. It provides no details of the
incident from an observer's point of view, but rather speaks
in the collective. It does not identify P.S. sufficiently to
permit verification of his statement through examination of
service department records.
In the absence of any detail that would permit corroboration,
the statement from P.S. is insufficient to demonstrate the
occurrence an in-service incident. Significantly, the
Veteran did not obtain any further statement from P.S.
despite being advised of the necessity to do so; both in
correspondence and at his RO hearing. As this letter does
not provide credible evidence of an in-service injury, the
criteria for service connection remain unsupported. The
preponderance of the evidence is against this claim and the
benefit of the doubt rule is not applicable. See 38 U.S.C.A.
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56
(1990).
ORDER
New and material evidence has been received to reopen the
service connection claim for residuals of a head injury and
to this extent only, the appeal is granted.
Entitlement to service connection for residuals of a head
injury is not warranted. To that extent, the appeal is
denied.
____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs